The Gay Rights Controversy

The issue: Does the Constitution protect homosexual conduct? What

limitations does the Constitution place on ability of states to treat
people differently because of their sexual orientation?
Introduction Cases
Two Supreme Court decisions involving Bowers v. Hardwick (1986)
gay rights, one decade apart, have left a lot Romer v. Evans (1996)
of people wondering just where the law now
stands with respect to the right to engage in Boy Scouts of America v. Dale
homosexual conduct. (2000)
Lawrence v Texas (2003)
The Court first considered the matter in the
1986 case of Bowers v Hardwick, a Map
challenge to a Georgia law authorizing
criminal penalties for persons found guilty
of sodomy. Although the Georgia law
applied both to heterosexual and
homosexual sodomy, the Supreme Court
chose to consider only the constitutionality
of applying the law to homosexual sodomy.
(Michael Hardwick, who sought to enjoin
enforcement of the Georgia law, had been
charged with sodomy after a police officer
discovered him in bed with another man.
Charges were later dropped.) In Bowers,
the Court ruled 5 to 4 that the Due Process
Clause "right of privacy" recognized in
cases such Griswold and Roe does not Questions
prevent the criminalization of homosexual
conduct between consenting adults. One of 1. Was the Court right in Bowers to view the
the five members of the majority, Justice case as one for an as applied review?
Powell, later described his vote in the case
2. Would the Court have recognized a right of a
as a mistake. (Interestingly, Powell's married couple to engage in sodomy?
concurring opinion suggests that were 3. Given the nature of the act in question, the
Georgia to have imprisoned Hardwick for enforcement rate of laws prohibiting sodomy
his conduct, that might be cruel and will be very low. Does that mean Bowers has
unusual punishment.) In 1999, the Georgia gotten more attention than it deserves? Why
Supreme Court struck down the statute firstor why not?
challenged in Bowers as a violation of the 4. If the Constitution does protect privacy,
Georgia Constitution. shouldn't it protect--if anything--consensual sex
in a private home, raising as it does both
In 1996, the Supreme Court again issues of decisional and spatial privacy?
considered gay rights issues in Romer v 5. The Court in Bowers seemed very
Evans, a challenge to a provision in the concerned about the slippery slope. Could the
Colorado Constitution (adopted by a 54% to Court protect homosexual sodomy between
46% vote) that prohibited the state or its
subdivisions from adopting any laws that
gave preferred or protected status to
homosexuals. (The provision, Amendment
2, effectively repealed anti-discrimination
laws in Boulder, Aspen, and Denver.) By a
6 to 3 vote, the Court found the Colorado
provision to lack a rational basis, and
therefore to violate the equal protection
rights of homosexuals. Justice Kennedy's
opinion concluded Amendment 2 was "born
of animosity" toward gays. Justice Scalia,
in his dissent, accused the Court of "taking
sides in the culture wars." After Romer,
speculation about the future of Bowers
became widespread, with people such as
Laurence Tribe predicting that Bowers "is
not long for this world."
Boy Scouts of America v Dale is analyzed
on the "Right Not to Associate Page." The
basis for the Court's decision that the Boys
Scouts have a right to exclude gays was the prohibiting homosexual marriage are
First Amendment's implied recognition of
the right of an expressive organization to
exlude members who might undermine the persons of the same sex from entering into a
group's goals or expressive purposes.
The Supreme Court in 2003 considered a
challenge to a Texas law that criminalized
homosexual sodomy, but not heterosexual homosexuals engaging in private sexual
sodomy. The case, Lawrence v Texas,
raised both substantive due process and
equal protection issues. Voting 5 to 4, the
Court overruled its earlier decision in
Bowers v Hardwick and found that the state
lacked a legitimate interest in regulating the
private sexual conduct of consenting
adults. Justice O'Connor added a sixth
vote to overturn the conviction, but rested
her decision solely on the Equal Protection
Clause. Predictably, Justice Scalia
dissented, accusing the majority of "largely
signing on to the so-called homosexual
agenda."
(For information on the issue of gay
marriages, see: Right to Marry.)
Tyron Garner (left) and John Lawrence (center)
Related Links
National Journal of Sexual Orientation Law
Sexual Orientation: Science, Education, and
Policy
ACLU: Gay and Lesbian Rights
consenting adults without also protecting
polygamy, adultery, incest, or bestiality? What
about sodomy in a public restroom? How might
lines be drawn?
6. What is the state interest in preventing
sodomy? How strong do you think it is? Does
concern about sexually transmitted disease
have a place in the Court's analysis?
7. Should homosexuals be treated as a
suspect or quasi-suspect class for purposes of
equal protection analysis?
8. Is "Don't Ask, Don't Tell" constitutional?
9. In Romer, is it reasonable to interpret
Amendment 2 as leaving no recourse against a
police department that adopted a policy of not
investigating incidents of gay-bashing?
10. Does the interest in protecting landlords
with fundamentalist beliefs, who might find it
religiously objectionable to rent to
homosexuals, provide a rational basis for
Amendment 2? Why or why not?
11. Does Lawrence suggest that laws
unconstitutional? What legitimate interest does
the state have, if any, in prohibiting two
marriage relationship?
12. Justice Scalia strongly criticized the
majority's reliance, in Lawrence, on European
decisions affording legal protection to
conduct. Do what extend to you see decisions
and trends in other parts of the world as being
relevant to interpretation of our Constitution?
.
were arrested when having sex in Lawrence's
Houston apartment. They are pictured with
their lawyer in 1998. (AP photo).
Family Research Council (conservative)

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